Opinion 20-115 

                                                 October 9, 2020

 Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Dear :

         This responds to your inquiry (20-115) asking about your ethical obligations when an attorney, whom your spouse and his/her sibling have retained to probate their parent’s estate and to handle related matters, appears before you. Your spouse and second-degree relative are co-executors of the estate.

         In general, the Committee has advised that a judge is disqualified, subject to remittal, when an attorney representing the judge’s first or second-degree relative appears before him/her while the representation is ongoing. In these situations, the judge’s ethical obligations are usually limited to the specific attorney who is or was personally involved, either directly or in a supervisory capacity, in representing the judge’s relative.

         Once the representation has concluded and all fees have been paid, the judge’s obligations for the first two years vary based on whether the judge is a beneficiary or otherwise has a direct personal interest in his/her spouse’s parent’s estate. If the judge has no such interest, he/she may preside over cases involving the attorney provided the judge can be fair and impartial and provided the judge discloses the former representation for a period of two years. However, when disclosure is mandated in lieu of disqualification, the judge must disqualify him/herself if any party appears without representation; if the judge does not wish to make full disclosure; or if the judge is not legally or ethically permitted to fully disclose. Conversely, if the judge has a personal interest in the matter, he/she must continue to disqualify for two years after the representation ends. After this two-year period, regardless of whether disqualification or disclosure was required, the judge has no further obligation but may disclose the prior relationship in his/her sole discretion.

         Here, we believe that any potential, indirect future interest in the estate at issue does not require that you continue to exercise disqualification for two years after attorney’s representation in the estate matter has concluded. Accordingly, because you did not participate in the hiring of this attorney and because you have no direct interest in the probate proceeding, you need only disclose the representation, subject to the above caveats, for the required two-year period.

         Enclosed, for your convenience, are Opinions 20-52; 14-60; 13-132; and 12-111 which address this issue. Degrees of relationship and the remittal process are more specifically addressed in Opinion 14-60 nn 1 and 3 and Opinions 13-132 and 12-111.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice (Ret.)

                                       Appellate Div. First Dep’t

                                       Committee Co-Chair

                                       Margaret T. Walsh                                                                                           Supreme Court Justice

                                       Committee Co-Chair

Encls.